As the climate crisis deepens, including signs of it causing severe damage to the health and development of infants, many are asking traditional legal processes can address what is an amorphous and existential threat that defies anything like national borders.
There are many unusual factors at play in the crisis: The foreseeable failure of the Paris Agreement to ensure the promised changes, a Supreme Court on the verge of abandoning Roe v. Wade (which would long-run significantly impact the environment), and Donald Trump doubling down on denying climate change, have raised discussions of the need for a framework solution beyond the day-to-day governance of elected and appointed officials.
Is there a higher authority, one more based on reason than religion?
Rights beyond the ken of processes? Sound familiar? Second Amendment jurisprudence and political discourse is replete with the idea. The argument goes something like this: If government is only by the will of the people, then they retain choices and rights beyond government – rights to defend themselves from the harmful influences of other people, to be autonomous from the collective, to protect a life of self-determination rather than a life of being determined by others. Regardless of our take on the Second Amendment, the idea that we should always retain the ability to be somehow autonomous regardless of what the masses do or decide seems appealing to many and drives political outcomes well beyond gun rights.
For example, this ideology - of autonomy - may well explain the divisive debates over Covid-19 restrictions. Could these ideas, derived from natural law theory and often part of the core ideology of Trump’s base, actually help drive an effective response to the climate crisis? Freedom has certainly been invoked to demand a response to environmental crises in the past.
Freedom through Natural Rights
While many believe the concept and value of autonomy means being able to do as one wishes, many prominent legal and political theorists, like Joseph Raz, have rejected that conception in favor of multi-faceted conception. Raz’s conception encompasses what we understand as the negative rights that enable us to be let alone by others, as well as the positive rights to levels of welfare and equity that ensure a range of valuable choices in our daily lives - the range that empowers us relative to others. This is the range the wealthy enjoy, and the impoverished do not.
Rather than being “let alone” to do whatever we wish regardless of others (to refuse to wear a mask where the weight of evidence shows the need to so for example), autonomy may in fact be more akin to being emancipated from one’s parents. Why? Because being so means one can be trusted amongst others.
Others push back on this conception, focusing instead on economic freedom, something they see as threatened by regulations called for by the climate crisis. The argument is that the best conception of freedom is a free market, a conception that is backed up by considerable data on the beneficial impact of markets. This approach generally pushes back on the intrinsic value of nature as the biodiverse nonhuman world, and on the value of economic equity as a move to give what is not deserved.
But does the climate crisis present the chance to reboot our thinking on all of this? Its impact on human autonomy, the way it will elevate the costs of being poor, represent a sea change that calls for a new approach.
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The Rights to Nature and Equity
There are two theories of human rights and constitutional law that - from opposite sides - push forward the expansive view of freedom as nature and equity, but this time with that something new. The work here focuses on nature not as a human resource, but in the sense of liberating wilderness and the antithesis of the anthropocentric climate crisis, and on equity not between adults, but between children – especially as regards the conditions of their birth and development.
Together these theories operate together from simple but little recognized truth: It is impossible to create other persons without simultaneously determining their lives, the ecologies they inhabit, the equity of their relations to others, and the nature of the democracies they would comprise. We cannot separate these values from us, and from our creation.
The first approach argues that the right “to be let alone,” guaranteed as the core of freedom by the Supreme Court, should be read to include a right to be let alone from the impact the government and others would have upon us through the climate crises, requiring aggressive climate mitigation to ensure restorative environmentalism that protects and restores nature – that which separates us from one another. It will be litigated later this year.
The second theory will begin as amicus in the Texas abortion ban litigation, arguing that the state’s ban is unconstitutional because it violates the equal protection rights of future generations, the generations who will inherent the world we have degraded. Like the right to be let alone, in terms of the environment, this approach reflects the right to be empowered relative to others, to be equal in the liberating sense of an even start line. But the approach goes far beyond traditional equal protection cases for one obvious reason: It would guarantee the beginnings of equal opportunities for the majority - those who will live in the future.
The approaches are controversial, and have drawn opposition from surprising corners, including more traditional environmentalists. The arguments against such a right to nature often rely on the lack of clear precedent or describe the right as physically impossible or practically unworkable. For opponents of birth and developmental equity the arguments are clear: Parents should be able to pass their privilege onto their children, and in fact would lose incentives to work hard and innovate without such a right.
Together the cases will point towards a future that is more natural and equal, a vision of physically self-determining people. In other words, a vision of people in functional town halls backgrounded by nature (or the absence of human power) where they could participate, matter and be free and equal, in a very literal sense. There is no other way to be truly empowered, unless we are willing to abandon the simple idea of democracy.
Based on the current structure of accepted constitutional rights, that is in fact the direction we are headed. Congress could allow the climate crisis to further threaten all Americans, and for equal opportunities in life, which are disappearing as the wealth gap widens and especially between children, to cease to exist.
If there are modern versions of human rights that exceed traditional political processes, the climate crisis, and vast economic inequity, may be the things that trigger their recognition. These questions will be placed before the courts, which is a move that in some ways seems to contradict the concept of natural rights. But is there another way?
Courts aside, there are direct action pathways to freedom and equality, ones that target particular concentrations of wealth and power. These concentrations achieved their position by externalizing social and ecological costs on others. They are the same concentrations that many are eager to target in order to have them pay back the wealth, ideally in the effective form of family planning reparations to future generations.
Regardless of the pathway, many are eager for answers to the questions of how we can change course without relying on the politicians that have failed us to date.